1090
420 FEDERAL REPORTER, 3d SERIES
cases in which ‘‘(1) secondary or collateral
injuries survive after resolution of the primary injury; (2) the issue is deemed a
wrong capable of repetition yet evading
review; (3) the defendant voluntarily
ceased an allegedly illegal practice but is
free to resume it at any time; or (4) it is a
properly certified class action.’’ (internal
quotation marks omitted)); see also Esparza, 862 F.2d at 793 (future changes in
agency interpretation were ‘‘too speculative and remote to bring [a] case within
any exception to the traditional mootness
doctrine’’).
Doña Ana claims that it is not bound by
the PRC Order. It argues that the PRC
cannot terminate rights it previously acquired under § 1926(b). In its supplementation under Fed. R.App. P. 28(j) it asserts
that ‘‘once the association becomes indebted, the state has no power to take away
the association’s legal right to provide service to a given area or customer.’’ But, as
just discussed, Doña Ana has no accrued
right to serve anyone in the Disputed Area
(except for its conceded right to serve its
single customer within the Disputed Area).
We addressed this issue in Pittsburg
County Rural Water Dist. No. 7 v. City of
McAlester, 358 F.3d 694 (10th Cir.2004),
which concerned the deannexation of a
portion of the existing service territory of
a qualified association. We held that
‘‘where the federal § 1926 protections have
attached, § 1926 preempts local or state
law that can be used to justify TTT encroachment upon [a] disputed area in
which an indebted association is legally
providing service under state law.’’ Id. at
715 (emphasis added) (internal quotation
marks and brackets omitted). In other
words, a state or local government may
not act ‘‘to take away from an indebted
rural water association any territory for
which the association is entitled to invoke
the protection of § 1926(b).’’
(emphasis added).
Id. at 716
Here, in contrast, there is no accrued
right. Doña Ana has no vested § 1926(b)
protection in the Disputed Area. Accordingly, the PRC Order is not preempted by
§ 1926(b) with respect to the Disputed
Area.
III.
CONCLUSION
We AFFIRM the district court judgment to the extent that it holds that Doña
Ana has no present § 1926(b) rights in the
Disputed Area. We VACATE the remainder of the judgment and REMAND with
instructions to dismiss it as moot.
,
Romia PRITCHETT, on behalf of
himself and all other individuals
similarly situated, Respondent,
v.
OFFICE DEPOT, INC., Petitioner.
No. 05–0501.
United States Court of Appeals,
Tenth Circuit.
Aug. 18, 2005.
Background: Employee brought state
court class action suit against employer,
alleging that employer had required assistant store managers to work extra hours
without paying overtime. After enactment
of Class Action Fairness Act, employer
removed action. The United States District
Court for the District of Colorado, Marcia
S. Kreiger, J., 360 F.Supp.2d 1176, granted
employee’s motion to remand. Employer
petitioned for leave to appeal.
PRITCHETT v. OFFICE DEPOT, INC.
Cite as 420 F.3d 1090 (10th Cir. 2005)
Holdings: In an amended opinion, the
Court of Appeals, Ebel, Circuit Judge,
held that:
(1) removal provisions of Class Action
Fairness Act do not apply to state
court cases that were pending at the
time of Act’s enactment and were removed after that date, and
(2) as matter of first impression, action
was ‘‘commenced’’ for purposes of Act
when it was filed in state court, not
when it was removed.
Petition for leave to appeal denied.
Opinion, 404 F.3d 1232, superseded.
1091
4. Removal of Cases O2
Removal provisions of Class Action
Fairness Act do not apply to state court
cases that were pending at the time of
Act’s enactment and were removed after
that date. 28 U.S.C.A. § 1332(d).
5. Federal Civil Procedure O4
General federal rule is that a lawsuit
is commenced at a discrete moment in
time occurring upon the filing of the original complaint in a court of competent jurisdiction. Fed.Rules Civ.Proc.Rule 3, 28
U.S.C.A.
6. Federal Courts O4
1. Removal of Cases O107(9)
Court of Appeals had jurisdiction to
consider petition for leave to appeal from
remand of removed case under its jurisdiction to determine its own jurisdiction, regardless of applicability of section of Class
Action Fairness Act expressly giving appellate courts discretionary jurisdiction to
consider appeals from remand orders. 28
U.S.C.A. § 1453(c)(2).
2. Removal of Cases O107(9)
Provision of Class Action Fairness Act
stating that Court of Appeals may accept
appeal from district court order granting
or denying motion to remand class action
to state court if application is made ‘‘not
less than 7 days’’ after entry of order
would be construed as providing that appeal is permissible if filed ‘‘not more than’’
seven days after entry of order; court believed provision to contain typographical
error because, if read literally, statute
would produce result demonstrably at odds
with Congress’s intention of imposing time
limits on appeals of class action remand
orders. 28 U.S.C.A. § 1453(c).
3. Federal Courts O30
Federal courts always have jurisdiction to consider their own jurisdiction.
Removal of Cases O2
Statutes conferring jurisdiction upon
the federal courts, and particularly removal statutes, are to be narrowly construed in
light of court’s constitutional role as limited tribunal.
7. Statutes O263
Presumption against the retroactivity
of a statute applies absent a clear congressional intent to the contrary.
8. Removal of Cases O2
Congress’ goal in passing Class Action
Fairness Act was to increase access to
federal courts. 28 U.S.C.A. § 1332(d).
9. Statutes O184
Where the language of a statute is
arguably ambiguous, courts may look to
public policy considerations to cast further
elucidation on Congress’ likely intent.
10. Removal of Cases O2
Action was ‘‘commenced’’ when case
was filed in state court for purposes of
provision applying Class Action Fairness
Act to any civil action ‘‘commenced’’ on or
after its date of enactment, not on later
1092
420 FEDERAL REPORTER, 3d SERIES
date when pending action was removed.
28 U.S.C.A. § 1332(d).
See publication Words and Phrases for other judicial constructions
and definitions.
Darren E. Nadel, Joshua B. Kirkpatrick,
John A. Ybarra, and Allan G. King, Littler
Mendelson, P.C., Denver, CO, for Petitioner.
Joseph J. Zonies, Kritzer/Zonies LLC,
Denver, CO, for Respondent.
Before EBEL, O’BRIEN and
McCONNELL, Circuit Judges.
EBEL, Circuit Judge.
This case presents a question of first
impression: Whether the removal provisions of the Class Action Fairness Act of
2005, Pub.L. No. 109–2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.)
(hereinafter ‘‘Class Action Fairness Act’’
or ‘‘the Act’’), apply to pending state court
cases that were removed after the effective
date of the Act. On March 18, 2005, we
entered an order in this case holding that
the Act does not apply to pending state
cases and denying Defendant’s Petition for
Leave to Appeal for lack of subject matter
jurisdiction. We now issue this opinion
explaining the reasoning for that order.
I.
Background
On April 2, 2003, Plaintiff Romia Pritchett, acting on behalf of himself and all
others similarly situated, filed a class action complaint against Defendant Office
Depot, Inc. in the Colorado District Court
for the County of Denver. Plaintiff, an
assistant store manager at an Office Depot
retail store, alleged that Defendant violated Colorado law by regularly requiring its
employees to work extra hours without
paying overtime. On June 21, 2004, the
state court certified a class pursuant to
Rule 23 of the Colorado Rules of Civil
Procedure consisting of ‘‘[a]ll Assistant
Store Managers employed by Office Depot,
Inc. in the State of Colorado from April 2,
2000.’’ Trial was set for March 14, 2005
and discovery commenced.
Approximately one month before the
start of trial, on February 18, 2005, Congress enacted the Class Action Fairness
Act. 119 Stat. at 4. One of the most significant features of the new law was that it
expanded the subject matter jurisdiction of
federal courts over class actions in which
at least one plaintiff class member was
diverse in citizenship from the defendant
and where the amount in controversy exceeded $5 million. See § 4, 119 Stat. at 9–
12 (codified at 28 U.S.C. § 1332(d)). If
such an action arose in state court, Section
5 of the Act permitted removal to federal
court in accordance with 28 U.S.C. § 1446.
§ 5, 119 Stat. at 12–13 (codified at 28
U.S.C. § 1453).
On March 1, 2005, just two weeks before
trial was scheduled to begin, Defendant
removed this action to the United States
District Court for the District of Colorado,
utilizing the newly-enacted provisions in 28
U.S.C. §§ 1332(d) and 1453 as a basis for
jurisdiction. On March 7, 2005, Plaintiff
moved to remand the proceedings to state
court pursuant to 28 U.S.C. § 1447, arguing that the Class Action Fairness Act of
2005 did not apply to actions already pending in state courts. The district court
agreed, and on March 9, 2005, remanded
the case to the state court.
On March 10, 2005, with trial only four
days away, Defendant requested a stay in
proceedings from the state court so that it
could appeal the district court’s remand
order. The state court denied the request
and instead delayed the start date of the
trial one week, to March 21, 2005.
PRITCHETT v. OFFICE DEPOT, INC.
Cite as 420 F.3d 1090 (10th Cir. 2005)
On March 14, 2005, Defendant filed a
petition for leave to appeal the district
court’s remand order with this court and
also filed a motion for an emergency stay
of the state court proceedings pending appeal. On March 18, 2005, we denied the
petition for leave to appeal for lack of
subject matter jurisdiction in a brief order
and indicated that further elaboration
would follow.1 That order also dismissed
the motion for an emergency stay as moot.
We now issue this opinion to explain the
court’s reasoning in the aforementioned
order.
II.
Jurisdiction
[1, 2] Defendant filed its petition for
leave to appeal under 28 U.S.C. § 1453(c),
which was recently enacted as part of the
Class Action Fairness Act of 2005. § 5, 119
Stat. at 12. Section 1453(c) is a provision
that expressly gives the United States
1.
In the order, we stated that Defendant’s
petition for leave to appeal arose under ‘‘28
U.S.C. 31453(c).’’ The statutory citation
should have read ‘‘28 U.S.C. § 1453(c).’’
2.
In actuality, 28 U.S.C. § 1453(c) reads as
follows:
[A] court of appeals may accept an appeal
from an order of a district court granting or
denying a motion to remand a class action
to the State court from which it was removed if application is made to the court of
appeals not less than 7 days after entry of
the order.
Id. (emphasis added). Read literally, this provision seems to say that the appeal from an
order granting or denying remand cannot be
taken within seven days of the order. Once
that period passes, however, the statute would
permit an appeal to our court at any time
thereafter.
We believe this to be a typographical error.
The statute should read that an appeal is
permissible if filed ‘‘not more than’’ seven
days after entry of the remand order. As
noted in the Senate Report accompanying the
Act, ‘‘New subsection 1453(c) provides discretionary appellate review of remand orders
under this legislation but also imposes time
1093
courts of appeals discretionary jurisdiction
to consider appeals of remand orders in
certain class action cases specified in the
Act, provided that the appeal is taken
within seven days of the remand order. 28
U.S.C. § 1453(c)(1).2 If a court of appeals
accepts an appeal under subsection (c)(1),
the appellate court is given sixty additional
days during which to render its judgment.
28 U.S.C. § 1453(c)(2).
[3] Here, the petition for leave to appeal was filed well within the seven-day
time limit, and jurisdiction vested in the
Tenth Circuit Court of Appeals at that
time. Although we ultimately conclude
that we do not have jurisdiction over this
appeal predicated on the Class Action
Fairness Act because this action was commenced prior to the effective date of the
Act, federal courts always have jurisdiction
to consider their own jurisdiction. Combs
limits. Specifically, parties must file a notice
of appeal within seven days after entry of a
remand order.’’ S.Rep. No. 109–14, at 49
(Feb. 28, 2005), U.S.Code Cong. & Admin.News 2005, pp. 3, 46 (emphasis added).
Prior to the enactment of 28 U.S.C. § 1453(c),
appeals from remand orders were only permitted in very limited circumstances. See 28
U.S.C. §§ 1443, 1447. Given Congress’ stated intent to impose time limits on appeals of
class action remand orders and the limited
availability of appeals prior to the statute’s
enactment, we can think of no plausible reason why the text of Act would instead impose
a seven-day waiting period followed by a limitless window for appeal. This, therefore, is
one of the rare cases in which a ‘‘literal
application of the statute will produce a result
demonstrably at odds with the intentions of
its drafters.’’ United States v. Ron Pair Enters., 489 U.S. 235, 242, 109 S.Ct. 1026, 103
L.Ed.2d 290 (1989).
We also note that a prior published version
of this opinion overlooked the statutory drafting error in § 1453(c), and we are grateful to
Professor Georgene M. Vairo for bringing it to
our attention. See Georgene M. Vairo, Class
Action Fairness, National Law Journal, June
27, 2005, at 12.
1094
420 FEDERAL REPORTER, 3d SERIES
v. PriceWaterhouse Coopers LLP, 382
F.3d 1196, 1204 (10th Cir.2004). Thus, we
have jurisdiction to consider our jurisdiction to grant the requested relief in the
instant case.
III.
Effective
§ 1332(d)
date
of
28
U.S.C.
[4] Section 9 of the Act provides that:
The amendments made by this Act shall
apply to any civil action commenced on
or after the date of enactment of this
Act.
119 Stat. at 14. The date of enactment of
the Act is February 18, 2005. Id. at 4.
This class action began on April 2, 2003
when Plaintiff filed his class action complaint with the Colorado District Court.
Defendant removed the case to federal
court on March 1, 2005. Thus, the applicability of the Act turns upon whether this
civil action was ‘‘commenced’’ on April 2,
2003 (the state court filing date), or on
March 1, 2005 (the federal court removal
date).
Defendant claims that the case was commenced for purposes of the Act when it
was removed to federal court. In essence,
Defendant argues that when a preexisting
state action is removed to federal court, it
is ‘‘commenced’’ in federal court as of the
date of removal. Plaintiff argues that the
class action commenced just once, when it
was initially filed in state court on April 2,
2003. Because that date precedes the effective date of the statute, according to
Plaintiff, this case is not governed by the
Act. We agree with Plaintiff’s reading of
the word ‘‘commenced.’’
[5] Our analysis is governed by traditional rules of statutory construction and
rules pertaining to federal jurisdiction.
Therefore, we look first to the language of
the statute, which reads as follows:
The amendments made by this Act shall
apply to any civil action commenced on
or after the date of enactment of this
Act.
§ 9, 119 Stat. at 14. Traditionally, a cause
of action is commenced when it is first
brought in an appropriate court, which
here was when it was brought in state
court. See Fed.R.Civ.P. 3 (‘‘A civil action
is commenced by filing a complaint with
the court.’’). When a matter is removed to
federal court, it is not traditionally viewed
as recommenced, nor as a new cause of
action. See Kieffer v. Travelers Fire Ins.
Co., 167 F.Supp. 398, 401 (D.Md.1958)
(‘‘[W]e do not usually think of an action as
having been commenced in a district court
by removal.’’); 14B Charles A. Wright,
Arther R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 3721, at
302 (3d ed.1998) (noting that removal jurisdiction is unique because it allows a federal
court to hear a claim over which it has no
original subject matter jurisdiction and
therefore to adjudicate a suit that could
never have been ‘‘commenced’’ there). Although there exist some unique circumstances in which some action other than
filing a complaint in court is deemed to
‘‘commence’’ a lawsuit, see, e.g., Meisel v.
Fed. Bureau of Investigation, 204
F.Supp.2d 684, 687–88 (S.D.N.Y.2002)
(holding that action under the Administrative Procedure Act may be commenced by
filing a miscellaneous discovery motion),
we view these situations as exceptions to
the general federal rule that a lawsuit is
commenced at a discrete moment in time:
the filing of the original complaint in a
court of competent jurisdiction. See Fed.
R.Civ.P. 3. Of course, some states provide
that service of process may commence a
suit. See, e.g., Conn. Gen.Stat. § 52–45a
(2003).
[6, 7] We then look to presumptions
that might aid our analysis. It is wellestablished that statutes conferring jurisdiction upon the federal courts, and partic-
PRITCHETT v. OFFICE DEPOT, INC.
Cite as 420 F.3d 1090 (10th Cir. 2005)
ularly removal statutes, are to be narrowly
construed in light of our constitutional role
as limited tribunals. Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 108–109, 61
S.Ct. 868, 85 L.Ed. 1214 (1941); United
States ex rel. King v. Hillcrest Health Ctr.,
264 F.3d 1271, 1280 (10th Cir.2001). Thus,
if there is ambiguity as to whether the
instant statute confers federal jurisdiction
over this case, we are compelled to adopt a
reasonable, narrow construction. Here,
we find Plaintiff’s interpretation of the
word ‘‘commenced’’ in the Act to be such a
construction.3
Finally, we turn to legislative history.
Although legislative history is sometimes
suspect as a persuasive interpretative tool,
here the progression of language in the
Act as it moved through Congress is instructive. When the Act was originally
introduced in the House, the removal provision applied both to cases ‘‘commenced’’
on or after the enactment date and to
1095
cases in which a class certification order is
entered on or after the enactment date.
See H.R. 516, 109th Cong. § 7 (2005). In
contrast, neither the Senate version of the
bill nor the final statute passed by both
houses of Congress provided for removal
of actions certified on or after the enactment date. See S. 5, 109th Cong. § 9
(2005); § 9, 119 Stat. at 14. The Senate
version and the final statute provided only
for application of the Class Action Fairness Act to civil actions ‘‘commenced’’ on
or after the date of the Act. S. 5; § 9, 110
Stat. at 14. It is thus clear that Congress
initially started out with broader language
that could have included a number of thenpending lawsuits in state courts. By excising the House provision, Congress signaled
an intent to narrow the removal provisions
of the Act to exclude currently pending
suits.4
Further, we note that the Congressional
Record contains two statements from
3.
We also note that courts apply a presumption against the retroactivity of a statute absent a clear congressional intent to the contrary. Landgraf v. USI Film Prods., Inc., 511
U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d
229 (1994). However, here, Defendant is not
arguing for retroactivity in the true sense of
the word, where the events giving rise to
liability occurred prior to the enactment of a
statute. See id. Rather, Defendant argues
that the operative act, removal, occurred after
the effective date of the statute and therefore
that the statute applies prospectively. Since
Defendant is not raising a traditional retroactivity argument, we will not engage in a Landgraf analysis.
vided that the new law would not ‘‘affect the
jurisdiction over or disposition of any suit
removed from the court of any State, or suit
commenced in any court of the United States,
before the passage hereofTTTT’’ Act of Aug. 13,
1888, ch. 866, 25 Stat. 433, 437 (emphasis
added).
Similarly, Sections 202(b) and
203(b) of the Judicial Improvements and Access to Justice Act, Pub.L. No. 100–702, 102
Stat. 4642 (1988), which deal with citizenship
for diversity purposes of multinational corporations, representative parties, and resident
aliens, each contain effective date provisions
applying that act to any ‘‘civil action commenced in or removed to’’ to federal court.
4.
Both sides have tried to draw support for
their positions by comparing the language in
the Act to comparable language in earlier
amendments to the federal diversity statutes
where Congress pegged the effective date provision to commencement or removal of an
action. However, we do not find those statutes particularly helpful here because the language in those earlier statutes cuts both ways.
For example, when Congress increased the
amount-in-controversy requirement for diversity jurisdiction from $500 to $2,000, it pro-
One could argue that because Congress refers only to commencement of a suit in some
effective date provisions and to commencement or removal in others, the two terms are
not synonymous. On the other hand, the
statutes that refer both to commencement and
removal limit the ‘‘commencement’’ event to
commencement of an action in the federal
court, which could not be construed to include commencement in a state court.
Hence, one could argue that Congress in
those statutes needed to add another jurisdic-
1096
420 FEDERAL REPORTER, 3d SERIES
sponsoring legislators indicating that the
bill was not designed to apply to currently
pending lawsuits. See 151 Cong. Rec.
S1080 (daily ed. Feb. 8, 2005) (statement
of Sen. Dodd) (‘‘[The Act] does not apply
retroactively, despite those who wanted it
to. A case filed before the date of enactment will be unaffected by any provision of
this legislation.’’); 151 Cong. Rec. H753
(daily ed. Feb. 17, 2005) (statement of
Rep. Goodlatte) (‘‘Since the legislation is
not retroactive, it would have absolutely no
effect on the 75 class actions already filed
against Merck in the wake of the Vioxx
withdrawal.’’).5 Ordinarily, individual floor
statements are entitled to little weight, but
here, where they are consistent with and
cast light upon the meaning of a specific
change in the language between an earlier
version of the bill and the final Act, the
statements confirm our construction of the
Act.
IV.
Prior precedent
er view of commencement. See Lorraine
Motors, Inc. v. Aetna Cas. & Sur. Co., 166
F.Supp. 319, 323–24 (E.D.N.Y.1958) (holding that an action is ‘‘commenced’’ on the
removal date for purposes of applying a
higher amount-in-controversy requirement); Hunt v. Transport Indem. Ins. Co.,
No. 90–00041, 1990 WL 192483, *5–6
(D.Haw. July 30, 1990) (unpublished)
(same).6
Neither of these cases deal directly with
the statute in question, which was passed
only several weeks ago. Thus, the cases
are relevant only by analogy. Even then,
their persuasive value is diluted, as Plaintiff points out, by the presence of contemporaneous contrary authority from other
federal district courts. See Kieffer, 167
F.Supp. at 402 (holding that action is
‘‘commenced’’ on initial filing date in state
court and declining to impose higher
amount-in-controversy requirement imposed prior to removal); Rhinehart v. Cincinnati, Inc., 716 F.Supp. 7, 8 (E.D.Mich.
1989) (same).
Defendant argues that there are several
district court opinions that adopt its broad-
[8] Moreover, the courts’ reasoning in
Lorraine Motors and Hunt actually sup-
tionally triggering event—removal to federal
court—that was not necessary here, where the
triggering event is the more general language
of commencement of ‘‘any civil action.’’ This
more general language is arguably broad
enough to include actions commenced in
state court. Because the language from analogous earlier statutes could plausibly support
both Plaintiff’s and Defendant’s positions, its
relevance to our analysis is substantially marginalized.
Congress’ decision to raise the amount-incontroversy requirement of § 1332. Lorraine
Motors, 166 F.Supp. at 320; Hunt, 1990 WL
192483, at *1. At the time of the initial state
filing, each suit would have satisfied the lower
federal amount-in-controversy requirement.
Id. However, the defendants in these cases
attempted to remove the actions only after
Congress had amended the diversity statute,
and neither suit satisfied the new amount in
controversy requirement, which was applicable only to cases ‘‘commenced’’ after the effective date of the statute. Id.
5.
6.
Plaintiff also points to similar statements
made by Senator Kennedy and Representative
Udall. See 151 Cong. Rec. S1087 (daily ed.
Feb. 8, 2005) (statement of Sen. Kennedy);
151 Cong. Rec. H741 (daily ed. Feb. 17,
2005) (statement of Rep. Udall). However,
since neither of these congressmen sponsored
the legislation and both voted against it, we
see little persuasive value in their comments.
In both Hunt and Lorraine Motors, the
plaintiffs filed their state court suits prior to
Both courts remanded the cases to state
court, and held that the actions were ‘‘commenced’’ for purposes of applying the new
amount-in-controversy requirement upon filing of the removal petition, not upon the filing
of the initial complaint in state court. Lorraine Motors, 166 F.Supp. at 324; Hunt, 1990
WL 192483, at *6.
PRITCHETT v. OFFICE DEPOT, INC.
Cite as 420 F.3d 1090 (10th Cir. 2005)
ports Plaintiff’s interpretation of the term
‘‘commenced.’’ Although the courts were
interpreting statutory language that is
identical to the disputed provision in the
instant case, there is a major difference
between a statute that defines additional
circumstances in which diversity of citizenship exists (such as the Class Action Fairness Act) and a statute that increases the
amount-in-controversy requirement. The
latter attempts to restrict federal court
jurisdiction, while the former attempts to
expand it. Both Hunt and Lorraine Motors rely heavily upon the principle that
removal statutes are to be strictly construed, with all doubts resolved against
removal. Lorraine Motors, 166 F.Supp. at
324; Hunt, 1990 WL 192483, at *6. Thus,
in those cases, interpreting the term ‘‘commenced’’ as referring to the filing of the
removal petition would serve that aim by
restricting the number of preexisting state
claims that could be removed. In contrast,
such an interpretation here would actually
permit broader federal court jurisdiction
by increasing the number of removable
actions.7 Given this, we remain convinced
that term ‘‘commenced’’ in the Act refers
to the initial filing, not the removal date.
V.
Public Policy
[9] Where the language of a statute is
arguably ambiguous, courts also look to
public policy considerations to cast further
elucidation on Congress’ likely intent.
United States v. LaHue, 170 F.3d 1026,
1028 (10th Cir.1999). Here, we are mind7.
We are mindful of the fact that Congress’
goal in passing this legislation was to increase
access to federal courts, and we also recognize that the Senate report instructs us to
construe the bill’s terms broadly. S.Rep. No.
109–14, at 43 (Feb. 28, 2005), U.S.Code Cong.
& Admin.News 2005, at 41. But these general sentiments do not provide carte blanche for
1097
ful of the fact that Defendant’s argument,
if accepted, could have serious consequences for both the federal judiciary and
our colleagues on the state bench. Permitting the Act to apply to currently pending state suits would, in the words of the
chairman of the Senate Judiciary Committee, ‘‘be extraordinarily disruptive of many
State court proceedings.’’ 151 Cong. Rec.
S1225 (daily ed. Feb. 10, 2005) (statement
of Sen. Specter).
As the facts of this case demonstrate,
Defendant’s interpretation of the Act
would allow cases to be plucked from state
court on the eve of trial. Such practices
are disruptive to federal-state comity and
the settled expectations of the litigants.
Permitting removal of this case would effectively apply new rules to a game in the
final minutes of the last quarter, and we
find it ironic that Defendant seeks countenance for its position from a statute that
was designed, in the first place, to curtail
jurisdictional gaming and forum-shopping.
S.Rep. No. 109–14, at 4–5, U.S.Code Cong.
& Admin.News 2005, at 5–6. The consequences of Defendant’s argument are sufficiently dramatic that we are not eager to
ascribe those motivations to Congress
without a clearer expression than we find
here.
VI.
Conclusion
[10] Because we conclude that removal
to federal court does not ‘‘commence’’ an
action for the purposes of the Class Action
Fairness Act of 2005, Defendant’s Petition
federal jurisdiction over a state class action
any time the statute is ambiguous. While it is
clear the Congress wished to expand federal
jurisdiction, when that expansion is made effective is what is at issue in this case, and that
is an issue we approach cautiously. See
Shamrock Oil & Gas Corp., 313 U.S. at 108–
109, 61 S.Ct. 868.
1098
420 FEDERAL REPORTER, 3d SERIES
for Leave to Appeal is DENIED.8
,
Holdings: The Court of Appeals, Seymour, Circuit Judge, held that:
(1) employee failed to establish that she
occupied a job similar to that of higher
paid males;
(2) employee failed to establish that she
was similarly situated to male employee who replaced her;
Gina L. MILLER, Plaintiff–Appellant,
v.
AUTOMOBILE CLUB OF NEW MEXICO, INC., doing business as AAA New
Mexico, Defendant–Appellee.
No. 03–2276.
United States Court of Appeals,
Tenth Circuit.
Aug. 19, 2005.
Background: Female employee sued employer alleging disparate treatment on the
basis of gender and age, in violation of
Title VII and the Age Discrimination in
Employment Act, (ADEA), and retaliation
under Title VII, the ADEA, and New Mexico state law. She also asserted a claim
under the Equal Pay Act, (EPA), along
with state law claims for breach of an
implied employment contract and breach
of the covenant of good faith and fair
dealing. The United States District Court
of the District of New Mexico, William F.
Downes, J., dismissed employee’s discrimination, retaliation, and EPA claims on
summary judgment. Her implied contract
and breach of the covenant of good faith
and fair dealing claims proceeded to trial,
but the jury was unable to reach a verdict.
The District Court entered judgment as a
matter of law on behalf of employer. Employee appealed district court’s rulings.
8.
Accordingly, Defendant’s motion for emergency stay pending appeal is DENIED as
(3) employee failed to establish a prima
facie Equal Pay Act (EPA) claim;
(4) six month window between employee’s
allegations of sexual discrimination and
the adverse employment action of eliminating her hourly position was insufficient to establish a prima facie case of
retaliation;
(5) employee failed to establish that employer’s elimination of her position and
creation of the new post for which was
required to apply was pretextual;
(6) under New Mexico law, as predicted
by the Court of Appeals, an at-will
employee is barred from bringing a
breach of implied contract claim for an
employer’s failure to fulfill a promise
to make future changes to the terms of
employment; and
(7) employer’s statements, policies, or
practices were insufficient to create a
binding promise on which employee
could reasonably that her position
would be upgraded, as required for
employee’s breach of implied contract
claim.
Affirmed.
1. Civil Rights O1175
A female Title VII plaintiff establishes
a prima facie case of sex discrimination by
showing that she occupies a job similar to
that of higher paid males. Civil Rights
moot.